Detailed version of knowledge points of civil procedure law
Lecture 1 Basic Theory of Civil Procedure
1. Multiple Dispute Resolution Mechanisms
1. Private relief mechanism: private mediation and reconciliation;
2. Social relief mechanism: people's mediation (could be sued or confirmed) arbitration (or arbitration or trial);
3. Public relief: litigation (enforcement protection).
2. The nature and effect of the civil procedure law
1. From the perspective of the legal system, it belongs to the basic law;
2. From the perspective of adjusted social relations, it belongs to departmental law;
3. From the perspective of content, it belongs to procedural law;
4. From the perspective of public and private law, it belongs to public law.
3. Subject matter of litigation (relationship of civil rights and obligations)
The object of litigation is the judgment object of the court, that is, the disputed civil rights and obligations between the parties, which is different from the claim (claim) and the object of litigation (specific object).
4. Types of lawsuits (complaints for confirmation, lawsuits for payment, lawsuits for modification)
1. Appeal for Confirmation
The plaintiff requests the court to confirm the existence or non-existence of some civil legal relationship between the plaintiff and the defendant, including positive confirmation lawsuits and negative confirmation lawsuits.
2. Complaint for payment
Suit for payment of property and action for payment (action of active payment or passive payment).
3. Suit for change (suit for formation)
A lawsuit in which the plaintiff requests to change or eliminate a certain legal relationship between him and the defendant (subject change, object change, content change).
5. Counterclaim (constitutive elements, difference from rebuttal)
1. Elements
(1) Subject: The plaintiff of the counterclaim is the defendant of this lawsuit, and the defendant of the counterclaim is the plaintiff of this lawsuit.
(2) The purpose is to offset or annex all or part of the plaintiff's claims.
(3) Independence: The withdrawal of this complaint does not affect the validity of the counterclaim.
(4) Same program: The programs must belong to the same category.
(5) The same jurisdiction: the counterclaim should be filed with the court that accepted the lawsuit. (6) Implications: The counterclaim and the claims of this lawsuit are based on the same legal relationship, and there is a causal relationship between the claims; or the counterclaim and the claims of this lawsuit are based on the same facts.
The second lecture is the basic principles of civil procedure
1. The principle of equal litigation status of the parties (distinct from reciprocity and equality)
2. The principle of equality and reciprocity
1. The principle of equality (normal)
2. The principle of reciprocity (retaliation)
3. Principles of debate
1. The principle of debate runs through the entire process of litigation procedures, but does not apply to non-litigation procedures and enforcement procedures
2. The right to debate belongs exclusively to the parties
3. Including Oral and Written Arguments
4. The principle of sanction (different from the principle of debate)
1. The principle of disposition can be applied in litigation procedures, non-litigation procedures and enforcement procedures
2. The right of disposition belongs exclusively to the parties concerned
3. The parties may make substantive and procedural sanctions
4. Discipline must be dealt with according to law and dealt with in good faith
5. The principle of good faith in civil litigation
6. Principles of civil procuratorial supervision (public to public)
7. Support the principle of prosecution (no relation to public interest litigation)
The third lecture is the basic system of civil procedure (throughout)
1. Collegiate system (collegiate system + single-appointed system)
1. The scope of application of the single-appointment system
(1) Simple civil cases heard by basic courts and their dispatched courts
(2) Partial special procedure cases: Non-major and difficult cases where citizens are declared missing or dead, cases where citizens are found to be incapable of civil conduct or limited capacity for civil conduct, cases where property is determined to be ownerless, and cases in which mediation agreements are confirmed, which are handled by special procedures. Realization of security interest cases
(3) The public notice stage of the public notice procedure
(4) Supervision procedures
2. Recusal system (applicable objects, methods, statutory reasons, right to decide, legal effect)
3. The two-instance final judgment system (the two-instance final judgment is the principle, and the first-instance final judgment is an exception)
Special circumstances under which the first-instance trial is final:
1. Judgments and rulings made by the Supreme People's Court in hearing cases
2. Cases that apply special procedures, supervision procedures, and public notice procedures
3. Cases confirming the validity of marriage
4. If the case of the first instance is closed by litigation mediation: the civil mediation document becomes effective from the date of receipt, and no appeal is allowed
5. Most rulings
6. Small claims proceedings
Lecture 4 Supervisor and Jurisdiction
1. The jurisdiction of the court
2. Jurisdiction at different levels (first-instance cases of basic courts, intermediate courts, high courts, and the Supreme Court)
1. First-instance cases under the jurisdiction of basic people's courts
Except for the first-instance civil cases under the jurisdiction of the intermediate, high and supreme courts as stipulated by law, all others shall be under the jurisdiction of the basic courts
2. Cases of first instance under the jurisdiction of intermediate people's courts
(1) Major foreign-related cases
(2) Cases with significant influence within the jurisdiction
(3) Cases determined by the Supreme Court to be under the jurisdiction of the Intermediate Court
3. Cases of first instance under the jurisdiction of the Higher People's Court
First-instance civil cases with significant impact in the jurisdiction
4. First-instance civil cases under the jurisdiction of the Supreme People's Court (only the Supreme People's Court can "control whoever it wants")
(1) Cases that have significant impact across the country
(2) Cases deemed to be tried by this court
3. Regional jurisdiction (general regional jurisdiction, special regional jurisdiction, exclusive jurisdiction, agreement jurisdiction)
5. General geographical jurisdiction
(1) It is generally stipulated that the plaintiff shall
(2) Special provisions: the defendant shall
6. Special geographical jurisdiction
(1) Special geographical jurisdiction for contract disputes
(2) Special geographical jurisdiction for infringement disputes
(3) Territorial Jurisdiction of Corporate Litigation
7. Exclusive jurisdiction
(1) A lawsuit brought on a real estate dispute shall be under the jurisdiction of the court at the place where the real estate is located
(2) Litigation due to disputes in port operations shall be under the jurisdiction of the maritime court at the location of the port
(3) Litigation for inheritance disputes shall be under the jurisdiction of the court at the place where the decedent died or where the main estate is located
8. Agreement Jurisdiction
4. Ruling Jurisdiction (designation of jurisdiction, transfer of jurisdiction, transfer of jurisdiction)
1. Designated Jurisdiction: Three Situations
2. Mobile Jurisdiction: After acceptance, when there is none, only once (error correction procedure)
3. Jurisdiction transfer: up and down + down and up
V. Objection to Jurisdiction and Response Jurisdiction
1. Conditions for filing an objection to jurisdiction
(1) Subject conditions: Usually, the objection to jurisdiction is raised by the defendant
(2) Time condition: The objection to jurisdiction should be raised during the period when the defendant submits the statement of defense
(3) Object of objection: geographical jurisdiction or level jurisdiction
2. How to handle objections to jurisdiction
After examination, if the objection is tenable, the ruling shall be transferred to the court with jurisdiction; if the objection is not tenable, the ruling shall be dismissed.
Note: Jurisdiction objection rulings can be appealed without retrial
3. Jurisdiction to respond to litigation
Lecture 5 Parties (Subjects)
1. Litigation rights capacity and litigation capacity
2. Eligibility of the parties (right parties)
3. Determination of parties: plaintiff and defendant
4. Joint action (ordinary joint action, necessary joint action)
5. Civil public interest litigation
1. Plaintiff subject qualifications: organs and relevant organizations stipulated by law
Note: Individual citizens cannot be plaintiffs in civil public interest litigation
2. Scope of application and types of cases
6. The third party to litigate (with or without a third party, no objection to jurisdiction can be raised)
1. There are only three
2. No one but three
3. The third party's right of rescission
7. Agent ad litem (statutory agent, entrusted agent)
Note: If the power of attorney only writes "full authority" without specific authorization. Does not have the effect of a specific authorization.
Lecture 6 Civil Litigation Auxiliary and Guarantee System
1. Period
1. Distinguish the concepts of statutory period and enacted period, variable period and immutable period
2 Calculation and extension of period
2. Service (direct service, lien service, electronic service, entrusted service, postal service, transfer service, announcement service)
3. Preservation (pre-litigation preservation, litigation preservation, pre-execution preservation)
4. Prior execution (scope of application, applicable conditions)
1. Scope of application (1) Cases of recourse to alimony, child support, childcare, pensions, and medical expenses (2) Cases of recourse to labor remuneration (3) Cases requiring pre-execution due to emergencies: Immediate cessation is required Infringement, remove hindrance; need to stop a certain behavior immediately; seek insurance compensation that is urgently needed to resume production and operation; need to return social insurance funds and social assistance funds immediately; if the payment is not returned immediately, it will seriously affect the rights and interests of the obligee. Production and operation.
Lecture 7 Court Mediation
1. The principle of court mediation (voluntary and legal)
2. The scope of application of court mediation
1. Circumstances in which mediation is not applicable
(1) Cases where special procedures, supervision procedures, and public notice procedures apply
(2) Marriage and other identity relationship confirmation cases and other cases that cannot be mediated according to the nature of the case
(3) Enforcement cases: Mediation is not applicable to enforcement procedures, but reconciliation is allowed
2. Circumstances that should be mediated
(1) Divorce cases
(2) Several types of cases that should be tried by mediation first under the application of summary procedure
3. The procedure of court mediation
1. Time for court mediation (1) Pre-litigation mediation (2) Pre-trial mediation (3) Trial mediation
2. Mediation method
3. The scope of mediation can exceed the litigation request, and the court can allow
4. Mediation Agreement and Mediation Letter
1. The contents of the mediation agreement shall not be made public, unless the court deems it necessary to do so in order to protect national interests, social public interests, and the legitimate rights and interests of others
2. Cases that do not require a mediation statement
(1) Divorce cases reconciled through mediation (2) Cases in which mediation maintains the adoption relationship; cases that can be performed immediately; other cases that do not require the preparation of mediation documents
Note: After the mediation agreement or mediation document becomes effective, it has the same legal effect as the effective judgment.
Lecture 8 Evidence and Proof in Civil Procedure (Compulsory Points)
1. Evidence qualifications (objectivity, relevance, legality)
2. Statutory Types of Evidence
Party statements, documentary evidence, physical evidence, audio-visual materials, electronic data, witness testimony, expert opinion, inspection records
3. Doctrinal Classification of Evidence
1. Evidence and counter-evidence
2. Direct evidence and indirect evidence
3. Original evidence and anecdotal evidence
4. The object of proof and the fact of exempting from certification
V. Burden of Proof and Standards of Proof
1. Burden of proof
(1) Premise: Unknown authenticity
(2) Subject: parties, the court does not bear the burden of proof
(3) For the same fact of the case, only one party bears the burden of proof
(4) Who bears the burden of proof is stipulated in advance by laws and judicial interpretations, and there is no issue that the burden of proof is transferred between the plaintiff and the defendant in litigation.
2. The distribution principle of the burden of proof:
(1) General principle: Whoever makes the claim shall produce the evidence (if the evidence cannot be provided or the evidence is insufficient to prove the factual claim it asserts, the party bearing the burden of proof shall bear the unfavorable consequences)
(2) Allocation of burden of proof in contract dispute cases
In the event of a dispute over the performance of a contract, the party with the obligation to perform shall bear the burden of proof
(3) Distribution of the burden of proof in general infringement cases (the plaintiff proves the infringement, causation, damage consequences, and fault; the defendant bears the burden of proof for the reasons for exemption and reduction of liability)
3. Proof standard
The standard of high probability is the principle, and beyond a reasonable doubt is the exception
Circumstances where the standard beyond reasonable doubt applies: (1) The party’s proof of the fact of fraud, coercion, and malicious collusion (2) The party’s proof of the fact of the oral will or donation
Lecture 9 Ordinary Procedures (Basic Procedures)
1. The stages of the ordinary procedure
1. Conditions for prosecution (1) The plaintiff is a citizen, legal person or other organization that has a direct interest in the case
(2) There is a clear defendant (3) There are specific claims, facts, and reasons (4) It falls within the jurisdiction of the people's court and the jurisdiction of the people's court accepting the lawsuit
2. The court's review and acceptance of the complaint
2. Withdrawal and default judgment
1. Withdrawal of the lawsuit: withdrawal of the lawsuit according to the application + processing according to the withdrawal of the lawsuit
(1) The conditions for applying for withdrawal of the lawsuit①must be submitted voluntarily by the parties②Time: before the end of the court debate③Method: written application is required④The withdrawal of the lawsuit must not harm the interests of the state, collective or others
(2) According to the statutory situation of withdrawing the lawsuit, ① the plaintiff or the appellant fails to pay the case acceptance fee on time; Third, the plaintiff's legal representative leaves the court without the permission of the court.
2. Default judgment
(1) Applicable objects (2) Main situations where default judgments are applicable
III. Postponement of Trial, Suspension of Litigation and Termination of Litigation
1. Postponement of trial (decision)
2. Suspension of litigation (ruling)
3. End of litigation
Lecture 10 Simplified Procedures (Key Points)
1. Simple procedure
1. Cases for which summary procedures are not applicable
(1) Cases where the defendant's whereabouts were unknown at the time of prosecution
(2) Cases remanded for retrial and subject to trial supervision procedures
(3) Special procedure cases, public notice procedures, and supervision procedures
(4) Cases involving a large number of parties
(5) Cases involving national interests and social public interests
(6) The third party's revocation lawsuit
(7) Other cases where summary procedures are not applicable
2. Small claims procedure (final trial in first instance + no appeal + retrial possible)
1. Cases in which small claims procedures are not applicable
(1) Personal relationship and property rights disputes
(2) Foreign-related civil disputes
(3) Intellectual property disputes
(4) Disputes that require evaluation and appraisal or have objections to pre-litigation evaluation and appraisal results
(5) Other disputes that are not suitable for the final trial of the first instance
2. Jurisdiction: Basic courts and their dispatched courts
Note: If a party raises an objection to the jurisdiction of a small claims case, the court shall make a ruling, which will take effect immediately once the ruling is made
Lecture 11 Second Instance Procedure
1. Filing and acceptance of appeals (conditions for filing, procedures,)
1. Conditions for filing an appeal (1) There are qualified appellants and appellees (2) Judgments and rulings that allow appeals according to law (3) Appeal within the appeal period (15 days for judgment and 10 days for ruling) (4) Appeal pleadings must be in writing
2. Procedures for filing an appeal
It should be submitted to the court of first instance, or directly appealed to the court of second instance
2. Withdrawal of the appeal
1. Conditions for applying to withdraw the appeal (1) Subject: The appellee has no such authority (2) The parties only have the right to apply for withdrawing the appeal, and the court has the final decision whether to allow the withdrawal
Note: After reviewing the application of the parties, if the court finds that the first-instance judgment was indeed wrong, or that the parties maliciously colluded to damage the national interests, social public interests, or the legitimate rights and interests of others, the court shall not approve the application.
2. Withdrawal of the appeal: different times (A Withdrawal of the appeal during the appeal period: no further appeals can be made afterwards; but whether the judgment takes effect depends on whether other parties appeal during the appeal period. B. Withdrawal of the appeal during the second instance. person, the first-instance judgment will take effect)
3. Withdrawal of the lawsuit in the second instance (A and other parties agree, and B does not harm the national interests, social public interests, or the legitimate rights and interests of others; if the conditions of AB are met, the court may approve, and if the withdrawal of the lawsuit is approved, it shall also rule to revoke the first-instance judgment)
Note: The court will not accept the withdrawal of the prosecution and the repeated prosecution in the second instance
3. Hearing of Appeal Cases
1. Second trial: fact trial + legal trial
2. Hearing in court is the principle, and hearing in court is the exception
Conditions for no hearing in the second instance: a. After reviewing files, investigating and questioning the parties; and no new facts, evidence or reasons are presented, and the collegial panel deems it unnecessary to hold a hearing
3. A collegial panel should be formed, and the jury system should not be applied
4. The judgment of the second-instance case
1. Reject the appeal and uphold the original judgment and ruling
(1) Directly uphold a. The facts of the original judgment are clear and the applicable law is correct. The judgment rejects the appeal and the original judgment is maintained. b. The facts of the original judgment are clear and the application of the law is correct.
(2) Maintenance after correction of defects: Although the judgment or ruling has defects in the factual determination or application of law, but the judgment result is correct, the second-instance court may maintain it according to law after correcting the defects in the judgment or ruling
2. Revise, revoke or change the judgment according to law (if there is a mistake, it must be corrected)
(1) If the original judgment was wrong in determining the facts or applying the law wrongly, the judgment should be amended in accordance with the law
(2) If the original ruling was wrong in determining the facts or applying the law wrongly, it should be revoked or changed in the form of a ruling
(3) The basic facts identified in the original judgment were not clear, and the judgment may be changed after the facts are ascertained
3. Ruling to revoke the original judgment and remand for retrial
(1) If the basic facts identified in the original judgment are not clear, the original judgment may be revoked by ruling and remanded to the original court for retrial
(2) If the original judgment omits the parties or the illegal default judgment seriously violates the statutory procedures, it shall rule to revoke the original judgment and send it back to the original court for retrial
Note: After the court of first instance has made a judgment on a case remanded for retrial, if the party files an appeal, the court of second instance may not remand it for retrial.
4. The time limit for the procedure of the second instance and the effectiveness of the judgment
(1) Cases appealing against judgments: 3 months from the date of filing of the second-instance case + extension under special circumstances (approved by the president of the court)
(2) Cases appealing against rulings: within 30 days from the date of filing of the second-instance case + extension under special circumstances (approved by the president of the court)
(3) The effectiveness of the second-instance judgment: no further appeal + prohibition of repeated prosecution + guarantee of execution
Twelfth lecture retrial procedure
1. Nature
2. Objects and scope of application (effective judgments, rulings, mediation documents)
3. The subject and method of initiating the retrial procedure (the court initiates, the party applies, and the procuratorate initiates the retrial)
4. Trial procedures for retrial cases
1. The trial court of the retrial case
(1) The court initiates a retrial on its own initiative ① The court decides to initiate a retrial on its own: this court hears the case
(2) Procuratorate initiates retrial
①Principle: There is a retrial by the court that accepted the protest, that is, the higher court with the original effective judgment, which belongs to the higher court for trial.
(3) Retrial initiated due to application by the parties
①Principle: Trial by a court above the intermediate level, except that the party concerned chooses a grassroots court to apply for retrial according to law (one party has a large number of parties or both parties are citizens)
②Cases ordered to be retried by the Supreme Court or the Higher Court shall be retried by this court or by other courts, or may be retried by the original court
2. Withdraw the prosecution during the retrial;
If the plaintiff of the first instance applies to withdraw the lawsuit during the retrial procedure, the court may approve the application if the other parties agree, and if it does not harm the interests of the state, the public interest, or the lawful rights and interests of others.
If the ruling permits the withdrawal of the lawsuit, the original judgment shall be revoked at the same time. If the plaintiff of the first instance withdraws the lawsuit in the retrial procedure and then sues again, the court shall not accept it.
Lecture 13 Non-litigation procedure
1. Special procedures
(I. Overview
(2) Voter qualification cases
(3) Cases of application for declaring a citizen missing or dead (time conditions, subject conditions, application method: must be submitted in writing, legal consequences)
(4) Cases where citizens were found to have no capacity for civil conduct or limited capacity for civil conduct
(5) Cases of Determination of Property Ownership
(6) Confirm the validity of the mediation agreement
1. Subject requirements: Both parties themselves or their agents who meet the provisions of Article 58 of the Civil Procedure Law jointly apply.
2. Jurisdictional court: the basic level court or the people's court where the mediation organization is located
3. Time limit for application: within 30 days from the effective date of the mediation agreement
4. Application method: written or oral form + material submission
5. Review content: whether the agreement is reached or not + material submission
6. Examination method: both parties shall be notified to attend the case together to verify the case
(7) Cases of realization of real rights for security
1. Applicant: the owner of the security interest and other persons who have the right to request the realization of the security interest
2. Jurisdictional court: the basic court of the place where the security property is located or where the security interest is registered
3. Examination subject: a single judge may be responsible for the examination; if the amount of guaranteed property exceeds the jurisdiction of the grassroots court, a collegial panel shall be formed to conduct the examination
2. Supervision procedures
1. Conditions for applying for a payment order
2. Procedural settings of the supervision procedure (1) Jurisdiction: the basic court of the debtor’s domicile (not subject to the limit of the amount of the creditor’s right) (2) After the court accepts the application, it will be reviewed by one judge (3) Trial level system: the first instance is final, no appeal , may not apply for retrial.
3. Legal effect of the payment order
(1) The effect of urging the debtor to pay off the debt within a time limit (within 15 days): Once the payment order is made and issued, it has the effect of urging
(2) Enforcement: If the objection period expires within 15 days and the debtor fails to raise an objection or the objection is rejected, the party to the payment order has the effect of enforcement.
4. Objection to payment order
(1) The debtor shall submit to the court within 15 days from the date of receipt of the payment order
(2) The objection is made in writing, and the oral objection is invalid; or the debtor sues in the court that accepts the application for payment order
(3) The court shall review the written objection of the party concerned, and if the objection is established upon review, it shall make a ruling to terminate the supervision procedure, and the payment order shall automatically become invalid.
(4) The legal consequences of the objection: the ruling terminates the supervision procedure, and the ruling cannot be appealed; the payment order automatically becomes invalid.
3. Public notice procedure
1. Features of public notice procedure (1) Procedural nature: non-litigation procedure (2) Two stages of court hearing: public notice stage + ex-rights judgment stage (3) Trial organization form: public notice procedure is applied to hear cases, and judges can Trial by one person alone; if the judgment declares the negotiable instrument invalid, a collegial panel should be formed to try it
2. Conditions for applying for a public notice
3. Public notice stage
(1) The review and handling of the application by the court: ① Does not meet the acceptance conditions: the ruling rejects the application ② Meets the acceptance conditions: issue a notice to stop payment + public reminder announcement (not less than 60 days)
(2) Declaration rights and review
Period for declaring rights: during the public notice period or before the ex-rights judgment is made
4. Judgment stage of ex-rights
(1) Conditions: ①Expiry of the public notice period, non-interested parties declare their rights or the declaration is rejected; 2. The applicant applies for a judgment of ex-rights;
(2) Effectiveness: The ex-rights judgment shall be announced and the payer shall be notified that the relevant certificate of rights shall become invalid. The deprivation judgment takes effect from the date of announcement, and the parties shall not appeal.
Lecture 14 Executing Procedures
1. Overview (not a dispute resolution procedure, does not apply to the principle of debate, does not apply to mediation)
1. The civil trial procedure is not the premise of the execution procedure; the execution procedure is not the continuation of the trial procedure
2. The people's procuratorate has the right to exercise legal supervision over civil enforcement activities
2. Execution Basis and Execution Jurisdiction
1. Based on: effective judgment, ruling, mediation
3. Initiation of execution procedures (application for execution is the principle, and transfer for execution is the supplement)
4. Objection to execution behavior
1. The subject of the objection to the enforcement action: the party concerned, the interested party
2. Reason for objection: the court’s execution act is considered to be illegal
3. Form and procedure: object in writing to the court in charge of execution
4. Handling method: The court shall review the objection within 15 days. If the objection is justified, it shall rule to revoke or correct it; if the objection is not established, it shall rule to reject it.
5. Relief mechanism: within 10 days from the date of delivery of the ruling, an application for reconsideration can be made to the higher court
6. During the examination and reconsideration period of the objection to execution, the execution shall not be suspended in principle
V. Execution of Reconciliation
1. The effectiveness of the execution of the settlement agreement
(1) No enforceability: it can only be performed automatically by the parties concerned, and cannot be applied to the court for enforcement
(2) The execution of the settlement agreement has the effect of suspending or terminating the execution
2. Apply for restoration of the original effective legal documents
(1) Statutory circumstances for resuming execution: ①One party fails to perform or does not fully perform the settlement agreement;
(2) Where a settlement agreement has been fulfilled, if one of the parties goes back on his word and applies for restoration of the original effective legal document, the court will not accept it. If a dispute arises during the execution of the settlement agreement, the parties shall sue separately.
Note: the court shall not resume the execution ex officio, but only upon the application of the parties. After recovery, the execution is based on the original effective legal documents, not the execution of the settlement agreement.
Lecture 15 Arbitration Procedures and Systems
1. Arbitration agreement (form and content, validity, confirmation of validity)
1. Form and content
2. Effectiveness
3. Confirmation of the validity of the arbitration agreement
(1) Confirmation institution: Arbitration Commission and court (court confirmation priority)
(2) If the parties have any objection to the validity of the arbitration agreement, they should raise it before the first hearing of the arbitral tribunal. If a party fails to raise an objection before the first hearing, and then applies to the court for confirmation that the arbitration agreement is invalid, the court shall not accept it.
2. Judicial supervision of arbitration (application for revocation of domestic arbitral award, application for non-enforcement of arbitral award)
1. Application to set aside domestic arbitral award
2. Application for non-enforcement of domestic arbitral award
Note the comparison: application to set aside domestic arbitral award and application for non-enforcement of domestic arbitral award